In 303 Creative LLC v. Elenis, 600 U.S. ___ (2023), the Supreme Court held, in a 6-3 decision, that a website designer had a First Amendment free speech right to refuse to create wedding websites for same-sex couples. This decision reversed the 10th U.S. Circuit Court of Appeals ruling in 303 Creative LLC v. Elenis, 6 F.4th 1160 (10th Cir. 2021).
Colorado law prohibits denying services based on sexual orientation
Lorie Smith is the owner and sole member of the web design company 303 Creative LLC. Smith sought to offer wedding website services through 303 Creative, but she recognized that her refusal to make such websites for same-sex couples would likely violate Colorado’s Anti-Discrimination Act.
The Colorado Anti-Discrimination Act prohibits public accommodations from refusing to provide full and equal enjoyment of services to individuals because of, among other protected characteristics, sexual orientation. The Act also prohibits public accommodations from publishing anything indicating that they will refuse full and equal service to individuals because of the characteristics the law protects.
Smith brought a pre-enforcement challenge seeking to enjoin Colorado from enforcing the law against her for refusing to make wedding websites for same-sex couples, even while making such wedding websites for heterosexual couples. She also sought an injunction against enforcement against her for including a message on her business website stating that 303 Creative would not create wedding websites for same-sex marriages.
The 10th Circuit had held that 303 Creative was subject to the Colorado Anti-Discrimination Act as a public accommodation and that Smith had standing to sue due to a credible fear of prosecution. But it held that the law was constitutional because it satisfied strict scrutiny. The 10th Circuit reasoned that the Act served the compelling government interest of protecting the dignity of members of marginalized groups and their access to material in the commercial marketplace and was the most narrowly tailored means by which to accomplish this end.
Court: Forcing designer to create same-sex wedding websites would be ‘compelled speech’
Writing for the majority, Supreme Court Justice Neil Gorsuch concluded that the Colorado Anti-Discrimination Act would require Smith to speak messages that she does not want to speak and that, as such, it would violate the compelled speech doctrine if used to force Smith to create wedding websites for same-sex couples.
Gorsuch acknowledged that governments have a compelling interest in “eliminating discrimination in places of public accommodation” and that states can “protect gay persons, just as [they] can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”
However, he denied that these considerations were sufficient to overcome the First Amendment’s prohibition against compelled speech in this case. Part of Gorsuch’s reasoning was his position that Smith’s refusal to make wedding websites for same-sex couples did not amount to discrimination on the basis of sexual orientation. In his view, Smith objected only to sending certain messages, but not to serving certain customers. As evidence of this conclusion, Gorsuch appealed to, among other things, the fact that Colorado and Smith both agreed that Smith was willing to serve LGBTQ customers other products.
Sotomayor argues ruling condones status-based discrimination
Writing in dissent, Justice Sonia Sotomayor rejected Gorsuch’s view that Smith’s refusal to make same-sex wedding websites was not status-based discrimination. Instead, she concluded that “the Court, for the first time in its history, grants a business open to the public a constitutional right to refuse to serve members of a protected class” and that the “Court also holds that the company has a right to post a notice that says, ‘no [wedding websites] will be sold if they will be used for gay marriages,’” which constitutes an act of discrimination.
While Gorsuch focused on the fact that Smith would serve LGBTQ customers many products, Sotomayor focused on the fact that Smith would not be providing full and equal service to LGBTQ customers. She noted, for example, that in Katzenbach v. McClung, 379 U. S. 294 (1964) the Supreme Court rejected a restaurant owner’s claimed “right to offer Black people a limited menu of his services” by serving them at a separate take-out counter.
As such, Sotomayor concluded that in siding with Smith, the court had violated the “general rule” laid out in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018) that “religious and philosophical objections to gay marriage ‘do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.’”
This article was published June 30, 2023. Mark Satta is assistant professor of philosophy at Wayne State University.